A national of Bangladesh was rescued and disembarked in Malta in September 2019. Upon arrival, he declared that he was a minor born on 01 January 2003 and he was held at Safi detention centre on health grounds until June 2020, when he was issued with a removal order.

On 8 October 2020, AWAS declared the appellant to be an adult, which he appealed before the Immigration Appeals Board. He applied for asylum on 22 October 2020 and was released from detention on 7 November 2020.

In August 2021, the appellant was apprehended at Malta International Airport trying to embark on a flight to Italy in possession of fraudulent documents. He was sentenced to six month imprisonment and upon release from Corradino Correctional Facility in December 2021, the return decision was “re-activated” and he was transferred to Safi Detention Centre pending removal to Bangladesh.

The appellant raised the following aspects before the Immigration Appeals Board:

• Being unlawfully detained for 5 months beyond the period prescribed by law and subsequently detained for a further 4 months under a return decision and removal order whilst being an asylum applicant – on this claim, the Immigration Appeals Board highlighted that appellant applied for asylum only after AWAS declared him to be an adult, and no detention order was issued as he was held on medical grounds. He was detained at Safi for 14 months and from 10 June 2020, he was detained on the basis of a return decision (for 4 months on the basis of the re-activation of the return decision on 6 December 2021 until 1 April 2022 and since 1 April 2022 following the conversion of the return decision into a detention order).
• Being detained with adults, although he claimed to be a minor upon arrival - on this claim, the Immigration Appeals Board noted that national legal provisions state that unaccompanied minors aged sixteen years or over may be placed in accommodation centres for adult asylum seeker.
• The lack of a review carried out by the Immigration Appeals Board to determine the legality of his detention at any stage of his detention – on this claim, the Immigration Appeals Board noted that it was never notified of a detention order nor at any stage prior to the detention order issued on 1 April 2022, thus the Immigration Appeals Board could not intervene in either the review nor the determination of the legality or illegality of a detention order. The Board noted that it is the Principal Immigration Officer who issues detention orders and the Immigration Appeals Board is notified upon the issuance.
• Being issued with two removal orders while still an asylum applicant – on this claim, the Immigration Appeals Board held that there were not two return decisions issued but that a re-activated return decision was converted into a detention order on 1 April 2022.

The Immigration Appeals Board confirmed that the detention order issued on 1 April 2022 was lawful due to the risk of absconding. It also noted that considering the pending age assessment it is presumed that the appellant is a minor. The Immigration Appeals Board decided that the appellant must be transferred to the buffer zone within AWAS Open Centre under those conditions that are deemed appropriate and necessary by AWAS.

Note:

Legal basis for removal orders: Articles 5 and 14 of the Immigration Act.

Legal basis for detention orders (applies to applicants for international protection): Regulation 6 of S.L. 420.06 Reception of Asylum Seekers Regulations